Citation Nr: 0916629
Decision Date: 05/04/09 Archive Date: 05/12/09
DOCKET NO. 04-28 533 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an initial rating higher than 20 percent
for type II diabetes mellitus, on a schedular basis.
2. Entitlement to an initial rating higher than 20 percent
for type II diabetes mellitus, on an extra-schedular basis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
L. Edwards, Associate Counsel
INTRODUCTION
The Veteran had active service from January 1964 to January
1966.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from a July 2003 rating decision of the Department
of Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida.
In August 2007, the Board remanded these claims for
additional development. That development having been
completed, the claims have been returned to the Board and are
now partially ready for appellate disposition.
Additionally, during the pendency of this appeal, the Veteran
raised the claims of entitlement to service connection for
residuals of a stroke, peripheral neuropathy, diabetic
retinopathy, and hypertension, all secondary to service-
connected type II diabetes mellitus. These issues are
REFERRED to the RO for appropriate action.
The issue of entitlement to an initial rating higher than 20
percent for diabetes mellitus, on an extra-schedular basis is
addressed in the REMAND portion of the decision below and is
REMANDED to the RO via the Appeals Management Center (AMC),
in Washington, DC.
FINDING OF FACT
The Veteran's diabetes mellitus does not require insulin and
regulation of activities.
CONCLUSION OF LAW
The criteria for a rating higher than 20 percent for the
Veteran's type II diabetes mellitus are not met. 38 U.S.C.A.
§ 1155 (West Supp. 2008); 38 C.F.R. §§ 4.1-4.14, 4.120,
Diagnostic Code 7913 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Duty to Notify and Assist
The VA has a duty to provide specific notification to the
Veteran and assist him with the development of evidence
pursuant to the Veterans Claims Assistance Act (VCAA). The
Veteran's claim for an initial rating higher than 20 percent
for diabetes mellitus arises from his disagreement with the
initial evaluation following the grant of service connection.
It has been held that once service connection is granted, the
claim is substantiated and additional notice is not required.
Any defect in the notice is not prejudicial. Hartman v.
Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007).
As to VA's duty to assist, the Board notes that pertinent
records from all relevant sources identified by the Veteran,
and for which he authorized VA to request, have been
obtained. 38 U.S.C.A. § 5103A. VA has associated service
treatment records and post-service VA medical center records
with the claims folder. Additionally, the Veteran was
afforded a VA examination in December 2008.
In light of the foregoing, the Board finds that there is no
further action to be undertaken to comply with the provisions
of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159, and
that the Veteran will not be prejudiced by the Board's
adjudication of the claim.
II. Entitlement to an Initial Rating Higher Than 20 Percent
for Type II Diabetes Mellitus, on a Schedular Basis
Compensation for type II diabetes mellitus was established by
a July 2003 rating decision, at which time a 20 percent
rating was assigned, effective from March 2003.
Disability ratings are based on the average impairment of
earning capacity resulting from disability. 38 U.S.C.A.
§ 1155 (West 2002); 38 C.F.R. § 4.1 (2008). Separate
diagnostic codes identify the various disabilities. Where
there is a question as to which of two evaluations shall be
applied, the higher evaluations will be assigned if the
disability more closely approximates the criteria required
for that rating. Otherwise, the lower rating will be
assigned. 38 C.F.R. § 4.7 (2008). The determination of
whether an increased evaluation is warranted is to be based
on a review of the entire evidence of record and the
application of all pertinent regulations. See Schafrath v.
Derwinski, 1 Vet. App. 589 (1991).
The Board notes that the appeal for a higher evaluation
arises from the initial rating decision, which established
compensation for diabetes mellitus and assigned the initial
disability evaluation. Therefore, the entire rating period
is to be considered, including the possibility of staged
ratings (i.e., separate ratings for separate periods of time)
based on the facts found. See Fenderson v. West, 12 Vet.
App. 119 (1999).
The Veteran is currently rated at 20 percent, under 38 C.F.R.
§ 4.120 Diagnostic Code 7913. A rating of 20 percent is
warranted when diabetes mellitus requires insulin and
restricted diet, or; an oral hypoglycemic agent and
restricted diet. 38 C.F.R. § 4.120 Diagnostic Code 7913
(2008).
The Veteran is seeking an increased rating. A rating of 40
percent is warranted, under Diagnostic Code 7913, when
diabetes mellitus requires insulin, restricted diet, and
regulation of activities. Id. A rating of 60 percent is
warranted when diabetes requires insulin, restricted diet,
and regulation of activities with episodes of ketoacidosis or
hypoglycemic reactions requiring one or two hospitalizations
per year or twice a month visits to a diabetic care provider,
plus complications that would not be compensable if
separately evaluated. Id. A rating of 100 percent is
warranted when diabetes mellitus requires more than one daily
injection of insulin, restricted diet, and regulation of
activities with episodes of ketoacidosis or hypoglycemic
reactions requiring at least three hospitalizations per year
or weekly visits to a diabetic care provider, plus either
progressive loss of weight and strength or complications that
would be compensable if separately evaluated. Id.
In this circumstance, "regulation of activities," is
defined as avoidance of strenuous occupational and
recreational activities. Id.
VA outpatient records were reviewed. The Veteran was
diagnosed with type II diabetes in 2002. Records indicate
the Veteran was instructed on the nutritional management of
diabetes, including a restricted diet, behavior management
techniques, and exercise, in December 2002. The Veteran was
also prescribed insulin in December 2002. In December 2003,
the Veteran indicated he exercised on a daily basis and it
was noted that the Veteran was generally in good health and
reported feeling well. In April 2004, it was noted that the
Veteran's diabetes was poorly controlled. He was again given
a restricted diet and healthy living habits were reinforced,
including completion of daily exercise as tolerated.
Outpatient notes indicate that in May 2006 the Veteran was
instructed to ride the stationary bike two to three times a
week, starting with 10 minutes, and to continue to monitor
his blood sugar and medication regimen, as well as maintain a
low carbohydrate and low fat diet. In February 2007, the
Veteran reported he was monitoring fat in his diet and that
he was very active. Multiple subsequent treatment notes
indicate the Veteran was reminded to maintain a diet low in
carbohydrates and concentrated sweets, and to exercise as
tolerated. Additionally, VA outpatient records indicate the
Veteran is currently suffering from diabetic retinopathy and
diabetic neuropathy.
The Veteran was afforded a VA examination in December 2008.
The Veteran is currently taking oral medication for diabetes
and denied any history of pancreatic trauma, pancreatic
neoplasm, or episodes of hypoglycemia reaction or
ketoacidosis. The examiner reported the Veteran is on a
restricted diet but is not restricted in his ability to
perform strenuous activities. The Veteran stated he has had
progressive loss of vision and loss of sensation. The
examiner noted the Veteran was not currently employed and
that diabetes had a mild effect on the Veteran's completion
of chores but no effect on shopping, exercise, sports,
recreation, traveling, feeding, bathing, dressing, toileting,
grooming, and driving. The Veteran reported his usual
occupation as working on air conditioners, but that he
retired in 2002 because of complications from diabetes,
including left upper and lower extremity weakness.
The Board has considered the full history of the Veteran's
type II diabetes. A rating of 40 percent is not warranted.
Although the Veteran required insulin during 2002, he is
currently taking an oral hypoglycemic agent and a restricted
diet. Additionally, there is no documentation of regulation
of activities, at any time, including the period of time he
was taking insulin, based on the effects of diabetes. This
is supported by VA outpatient records directing the Veteran
to exercise, as well as the VA examination that indicated the
Veteran is not restricted in ability to perform strenuous
activities and reported there is no effect on recreational
activities such as shopping, exercise, sports, recreation,
traveling, etc. Additionally, ratings of 60 percent and 100
percent are not warranted because the Veteran has not had
episodes of ketoacidosis or hypoglycemic reactions. In fact,
the Veteran himself indicated in the VA Form 9 that his
diabetes has not reached the state where he requires insulin,
restricted diet, and regulation of activities.
Accordingly, the Board finds that a rating of 20 percent
adequately compensates the Veteran for the degree of
disability manifested by his service-connected type II
diabetes, on a schedular basis. The Veteran does not meet
the criteria to warrant an increased disability rating higher
than 20 percent, and his claim must be denied.
ORDER
A disability rating higher than 20 percent for the Veteran's
type II diabetes mellitus is denied.
REMAND
In an April 2009 statement, the Veteran's representative
raised the issue of entitlement to an initial rating higher
than 20 percent for diabetes mellitus on an extra-schedular
basis. During a VA examination in December 2008, the Veteran
stated he was currently unemployed and had retired because of
left upper and lower extremity weakness, which the VA
examiner stated was a complication of the diabetes mellitus.
The Board finds that a complete adjudication is necessary.
The authority to assign extra-schedular ratings has been
delegated to the Under Secretary for Benefits and the
Director of the Compensation and Pension Service, and not the
Board. The proper course of action is to raise the issue and
remand it for the proper procedural actions outlined in 38
C.F.R. § 3.321(b)(1) and 38 C.F.R. § 4.16(b).
Accordingly, the case is REMANDED for the following actions:
1. Ask the Veteran to submit evidence
of interference with employment, such
as the number of hours he worked and
time or wages lost due to his service-
connected type II diabetes mellitus.
Documentation such as work attendance
records should be requested.
2. Thereafter, consider whether the
claim must be submitted to the Director,
Compensation and Pension Service or the
Under Secretary for Benefits for
extraschedular consideration under 38
C.F.R. § 3.321 (b)(1).
3. If the claim remains denied, a
supplemental statement of the case
should be provided to the Veteran and
his representative. After the Veteran
and his representative have had an
adequate opportunity to respond, the
appeal should be returned to the Board
for appellate review.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008).
______________________________________________
MICHAEL MARTIN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs